Satbir and Others vs Dalip Singh and Others

Rajiv Narain Raina, J.—Reply to the application filed in Court is taken on record. Copy has been given to learned counsel for respondent Nos. 1 and 3 who has gone through the same and does not wish to file any rejoinder. Reply accordingly dispensed with. Heard the learned counsel for the parties at length.

The main case is taken on Board for final disposal by consent.

The dispute is with respect to land involving two brothers. The suit property is in joint possession of co-sharers suffering partition proceedings instituted by the petitioners, being one unit of the coparcenary property. The suit land abuts a State highway. It has considerable frontage. The petitioners are in possession and occupation of land falling on the eastern side where they have built a dhaba/hotel which goes by the name of Yadav Hotel and they running their business on that portion of the land since last 15 years without let or hindrance from the remaining siblings.

Mr. D.S. Bali, learned Senior Counsel appears for respondent Nos. 1 and 3 i.e. Dalip Singh and Virender Kumar. Dalip Singh has entered into a lease agreement with Varinder Kumar, a third party, for the latter to establish and run a retail dealership/petrol pump on the joint land which has been in his exclusive possession for the last two decades. It is said that ten shops exist on the extreme western side of the suit property constructed by defendant No. 2/Basanti, sister of the warring brothers who appears to have taken the side of her brother Dalip Singh.

It is not disputed that the petitioners have instituted a suit for partition before the revenue authorities which is pending before the Assistant Collector, Grade-II at Kanina, District Mahendergarh, Haryana. The middle portion of the land between the physical possessory rights in joint property of the respondent Dalip Singh and Basanti is where the petrol pump is slated to come up. Both the Courts have returned concurrent findings on the application under Order 39 Rules 1 & 2, CPC filed by the petitioners praying for grant of temporary injunction restraining the defendants from carrying out the construction on the middle portion of the suit land but the same have not found favour with the trial Court and Lower Appellate Court and the application has been dismissed against which the present petition has been instituted under Article 227 of the Constitution of India.

It may be noted that the impugned order passed by the learned Additional District Judge, Narnaul in appeal is dated 29th May, 2013. The present petition has been filed after considerable delay without any sufficient cause shown to approach this Court belatedly. Be that as it may, the present petition was filed on 19th February, 2014 and was entertained by this Court and the motion order was passed on 24th February, 2014 which reads as follows:--

Though the petitioners are co-sharers of the suit property the partition proceedings are pending between them and the respondents. The complaint is that defendant Nos. 1 and 2 have entered into a lease agreement with defendant No. 3 to run a petrol pump on the suit land subject matter of partition proceedings. If the construction is allowed at the hands of third party respondent No. 3/defendant No. 3 then the petitioners would be seriously injured since they are till conclusion of partition proceedings, co-owners of each inch of the suit land.

Notice of motion returnable on 25.04.2014.

In the meanwhile, status quo with regard to land be maintained.

This Court passed the order of status quo with respect to the suit land to be maintained. The contesting respondent Nos. 1 and 3 have put in appearance and have filed the present application for vacation of status quo order claiming that the petitioners have themselves asserted right to undivided land of possession of a particular part of the property on the eastern hotel side over the last 10-15 years without calling in question the possessory rights of each other. However, it appears that when the 1st respondent began entering into an agreement of lease with third party defendant No. 3 Virender Kumar, who is said to be engaged in the business of running petrol pumps elsewhere, then conflict started. Dalip Singh entered into a lease agreement with Virender Kumar permitting land use for running a petrol pump on the land possessed by him. It is this which has brought the petitioners to institute the suit at Kanina praying declaration and permanent injunction.

Having heard the learned counsel for the petitioner and the Learned senior counsel for the contesting respondents and after carefully examining the pros and cons of grant of a temporary injunction/stay order prayed for by the petitioners, I am of the consider view that though normally there should be no injunction against co-sharers, the reason for concurrent denial of a temporary injunction by both courts below, but since the petitioners have themselves established exclusive possessory rights over western side of the property by carrying out construction of a hotel/dhaba then they should not be heard to seriously complain of the user of the remaining portion of the land by a brother and sister. It appears plain to this Court after hearing arguments of the learned counsel at considerable length that Dalip Singh and his sister Basanti are working unison and appear to have developed common interest of which the petitioners are not part and cannot complain of such filial relationship of which the court can say nothing. Since the petitioners themselves have instituted partition proceedings before the revenue authorities this Court forms no opinion as to the merit and fate of those proceedings and the matter remains in the exclusive dominion of the revenue Court to divide the property by partition.

Mr. Bali submits that if the contesting respondents are permitted to allow raising of a petrol pump on the middle portion of the land his clients undertake to this Court that the same will remain subject to the partition proceedings before the revenue authorities. Though Bharat Petroleum Corporation is not a party to the proceedings but would start a petrol pump in dealership with Virender Kumar, any dealership agreement executed between the Corporation and the third party with respect to land leased by the contesting respondents would remain subject to partition proceedings to which neither Virender Kumar nor the Bharat Petroleum Corporation would have a right to contest the final dispensation in case the division of property by partition necessitates intrusion of one upon the other''s possessory rights they would not claim any personal or independent right to the leased land beneath the petrol outlet, if and when constructed, and the contesting parties would remain subject to the revenue court''s final partition decree.

With these protections afforded to both parties and by limiting the lease hold rights of defendant No. 2, the third-party outsider, and making them subject to the final outcome of the partition proceedings before the revenue courts the matter stands resolved accordingly by consent.

Resultantly, the order of status quo issued ex parte on 24th February, 2014 stands vacated. The petition is disposed of in terms of the protections afforded and the undertakings given to this Court as above. The suit stands compromised. The rights of parties will now be governed by the partition proceedings pending before the revenue court. Order dasti.